Shouting Fire in a Burning Theater: Distinguishing Fourth Estate from Fifth Column in the Age of Wikileaks

19 Pages Posted: 9 May 2012

Date Written: May 9, 2012

Abstract

This Comment explores the theory of criminal liability under the Espionage Act under which the United States government sought to prosecute Julian Assange for his disclosure of thousands of classified State Department diplomatic cables in November 2010. It concludes that because of the instanteneous speed with which information travels and spreads in the Internet age, the prior restraint analysis of the Pentagon Papers case, to which the WikiLeaks controversy has widely been compared, is essentially obsolete, as it is now all but impossible for governments to physically prevent the publication and widespread dissemination of classified material once that material reaches cyberspace. As a result, the government's legal strategy against Assange is to claim that he violated the Espionage Act by publishing the cables with the specific intent of harming U.S. national security. The Comment argues that such a theory of prosecution, were it to become normalized, threatens to obliterate the traditional distinction between protected political speech and unlawful breach of classified information that has underpinned First Amendment jurisprudence for nearly a century.

Keywords: WikiLeaks, National Security, Free Speech, First Amendment, Espionage Act, Julian Assange, Classified Information, Secrecy, Prior Restraint

Suggested Citation

Schotter, Geoffrey, Shouting Fire in a Burning Theater: Distinguishing Fourth Estate from Fifth Column in the Age of Wikileaks (May 9, 2012). Case Western Reserve Journal of Law, Technology & the Internet, Vol. 2, No. 2, 2012. Available at SSRN: https://ssrn.com/abstract=2055351

Geoffrey Schotter (Contact Author)

affiliation not provided to SSRN ( email )

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